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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47882
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I am currently a registered manager of a childrens residential

Customer Question

I am currently a registered manager of a childrens residential home and I use to work shifts. Since the sudden death of my son in January I had two months off work which my company paid my wages. I returned to work initially working day hours 9 - 4 three days a week and was paid my previous salary hourly rate I have increased my hours to five days a week and 9-5. I previously had responsibility of on call manager when I was on shift. I have now taken on the responsibility of senior on call which is once a week and once every three weeks Friday to Sunday. My doctor feels that I am currently not in a position to be able to work a full shift if someone goes off sick (which if I did I would get paid the additional hours) I therefore complete my on call from home by phone. They have now told me as I am not in a position to work the shift if I was needed then my hourly rate is to reduce by £1.00 per hour which I feel is unacceptable as I still have the responsibility and I am accountable to Ofsted for my role. The only part I am currently not in a position to do is to work a shift if someone goes off sick but if I was I would get paid extra for working it this sounds totally illogical. Can you please advise
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello how long have you worked there for?
Customer: replied 1 year ago.
I started working for them in October 2010
Expert:  Ben Jones replied 1 year ago.
Thank you, ***** ***** clarify - you are unable to perform one part of your job, but if you could then you would be paid extra for doing it anyway? Are there comparably employees who do not do this part and are paid less?
Customer: replied 1 year ago.
I fulfill the role and responsibilities of the position within the recommendation by my doctor and occupational health except for the additional when I am available to work on the shift where I would get paid extra. There is one other RGM who works days like me who is able to fulfil the extra. Another RGM works on a shift pattern and now gets paid extra for when she does a sleepin which is £35.00 per sleep in. So in answer to your question yes.
Expert:  Ben Jones replied 1 year ago.
If you are getting paid extra to do the on call you are no longer able to do, then it does not mean that your pay should be reduced instead. Doing so would amount to a change of your employment terms and conditions. There are a few ways in which an employer may try and make changes to an employee’s contract of employment. These are by:· Receiving the employee’s express consent to the changes.· Forcefully introducing the changes (called 'unilateral change of contract').· Giving the employee notice to terminate their current contract and then offer them immediate re-engagement under a new contract that contains the new terms. If the changes are introduced without the employee's consent, then certain options are available to you to try and challenge that. In addition, the employer’s actions could amount to disability discrimination if you are being treated less favourably due to the fact you have a disability. This is your basic legal position. I have more detailed advice for you in relation to the options open to you to deal with this change, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, leaving a rating will not close the question and we can continue this discussion. Thank you
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Expert:  Ben Jones replied 1 year ago.
Many thanks for your rating. So as mentioned, if the changes are introduced without the employee's consent, then the following options are available:
1. Start working on the new terms but making it clear in writing that you are working ‘under protest’. This means that you do not agree with the changes but feel forced to do so. In the meantime you should try and resolve the issue either by informal discussions or by raising a formal grievance.
2. If the changes fundamentally impact the contract, for example changes to pay, duties, place of work, etc., you may wish to consider resigning and claiming constructive dismissal. The resignation must be done without unreasonable delay so as not to give the impression that the changes had been accepted. The claim must be submitted in an employment tribunal within 3 months of resigning and is subject to you having at least 2 years' continuous service. You would then seek compensation for loss of earnings resulting from the employer's actions.
3. If the employment is terminated and the employer offers re-engagement on the new terms that could potentially amount to unfair dismissal. However, the employer can try and justify the dismissal and the changes if they had a sound business reason for doing so. This could be pressing business needs requiring drastic changes for the company to survive. If no such reason exists, you can make a claim for unfair dismissal in an employment tribunal. The same time limit of 3 months to claim and the requirement to have 2 years' continuous would apply.
Finally, it is also worth mentioning that sometimes employment contracts may try to give the employer a general right to make changes to an employee’s contract. As such clauses give the employer the unreserved to change any term, so as to evade the general rule that changes must be mutually agreed, courts will rarely enforce such clauses. Nothing but the clearest language will be sufficient to create such a right and the situation must warrant it. Any attempt to rely on such clauses will still be subject to the requirement of the employer to act reasonably and can be challenged as above
Hope this helps. .
Customer: replied 1 year ago.
I appreciate your help. I have a meeting on Tuesday 16/11/2015 I am sure it will not be concluded from there and if I need to I will come back to you if that is ok.many Thanks
Expert:  Ben Jones replied 1 year ago.
Yes of course, all the best for now